(Law-making; 06-02; p.2)
The decision had not been an unanimous one,
a quarter of the judges involved did not agree.
- Opinions about law are not always unambiguous, the arguments
for and against a decision therefore become important. A summary
of them will be given.
Germany is a federal state and so, federal laws
affecting the regions, the "Länder", have to be passed
by parliament as well as the federal chamber, the "Bundesrat".
This year in June the Bundesrat discussed the law about immigration,
its president made out a majority for it and thus, it could had
been put into force after promulgation. Alas, the question was
raised whether or not there had been a majority for the law: the
Constitutional Court had to decide exactly about this.
Six of eight judges of the Second Senate of
the Constitutional Court, which was concerned with the matter
decided on 18. December that the majority for the law had been
claimed not in accordance with the constitution and subsequently
declared the law to be not passed yet.
Two judges however considered the proceedings as constitutional,
i.e. in accordance with the words and the system of existing rules
and the history of rulings and interpretations (cf. for the following:
Bundesverfassungsgericht: Urteil des Zweiten Senats vom 18. Dezember
2002 [translated: Constitutional Court: Decision of the Second
Senate of 18. December 2002], BVerfG,
2 BvF 1/02 vom 18.12.2002, Absatz-Nr. (1 - 180)).
- In other words: the judges by profession do not have to decide
about questions of democracy or legitimacy, but about accordance
with existing laws, especially Germany's constitution, the Basic
(read on here)